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Federal Communications Commission
2006 Biennial Regulatory Review
EB Docket No. 06-153
Enforcement Bureau
Staff Report
February 14, 2007
I. OVERVIEW
1. The Enforcement Bureau (EB) is the primary organizational unit within
the Commission that is responsible for enforcement of provisions of
the Communications Act and the Commission's rules. EB has specific
responsibility for administering rules governing formal common carrier
complaint proceedings at the Commission and the imposition of
forfeiture penalties. Staff reviewed these rules to determine whether
they are "no longer necessary in the public interest as the result of
meaningful economic competition between providers of such
[telecommunications] service," as required by Section 11 of the
Communications Act of 1934, as amended. As part of this review, the
Commission sought recommendations from the public concerning whether
these rules and procedures should be modified or eliminated.
II. SCOPE OF REVIEW
2. The Commission identified the following rule parts containing
regulations administered by the Enforcement Bureau for review and
comment in the Public Notice:
Part 1 - Practice and Procedure - Sections 1.711 and 1.720 to 1.736 set
forth rules for the filing of formal complaints against common carriers.
Sections 1.80 and 1.89 of the Commission's rules address forfeiture
proceedings and penalties and Notice of Violations proceedings.
Increased competition in the marketplace does not diminish the need for
these rules, and thus we do not find that they are no longer necessary in
the public interest as the result of meaningful economic competition
between telecommunications service providers. Accordingly, we find that
these rules should be retained.
3. Rules 1.711 and 1.720 through 1.736 set forth the procedures for
formal complaint proceedings against common carriers. Competitive
developments have not affected the need for these rules. Section 208
of the Communications Act continues to permit any person to file a
complaint with the Commission alleging that a common carrier has
violated the provisions of the Communications Act. Indeed, in a more
competitive marketplace, such complaints are often filed by one
competitor against another. So long as the right to file complaints
remains, the Commission needs to maintain rules establishing the
procedures for filing those complaints. No party has filed comments
arguing to the contrary. Accordingly, we do not find that these rules
are no longer necessary in the public interest as the result of
meaningful economic competition between providers of
telecommunications service.
4. The American Association of People with Disabilities ("AAPD") filed
comments in this proceeding supporting retention of the formal
complaint rules in sections 1.711 and 1.720 through 1.736. While
supporting retention of the rules, AAPD submitted proposals for ways
to improve the complaint intake process as it relates to complaints
alleging violations of Section 255 of the Communications Act. For
example, AAPD recommends that the formal complaint rules be modified
to expressly reference Section 255 or to include instructions for
filing a formal complaint alleging a violation of Section 255 of the
Act. AAPD also recommends that the complaint filing form be modified
to include reference to Section 255 of the Act. As stated above,
Section 11 requires us to determine whether rules are "no longer
necessary in the public interest as the result of meaningful economic
competition between providers of such [telecommunications] service."
AAPD does not suggest that the modifications it proposes meet this
standard; however, we appreciate the concerns raised by AAPD, and will
remain sensitive and responsive to all inquiries regarding application
of our formal complaint rules to ensure that those wishing to file
complaints alleging violations of Section 255 of the Act have the
information they need to proceed.
5. Rule 1.80 sets forth who may be subject to a forfeiture penalty for
violation of the Communications Act or Commission rules and orders,
the limits on the amount of the forfeitures that may be assessed, and
guidelines for determining the amount of such forfeitures. Competitive
developments have not reduced the need for these rules. Enforcement is
important in a competitive marketplace to ensure that the market is
able to function without unlawful interference, and thus rule 1.80
remains necessary in the public interest. No parties argued for
elimination of this rule. Accordingly, we do not find that this rule
is no longer necessary in the public interest as a result of
meaningful economic competition between providers of
telecommunications service. However, as a result of ongoing review of
rule 1.80, staff recommends initiating a new proceeding or proceedings
to consider modifying the forfeiture guidelines to ensure that these
guidelines are up-to-date.
6. Rule 1.89 sets forth the process used by the Commission when issuing a
Notice of Violation. The rule provides that, except in cases of
willfulness or those in which public health, interest or safety
requires otherwise, any person who holds a license, permit or other
authorization appearing to have violated any provision of the
Communications Act or any provision of the Commission's Rules will,
before revocation, suspension, or cease and desist proceedings are
instituted, be served with a written Notice of Violation calling these
facts to his or her attention and requesting a statement regarding the
matter. The Notice of Violation may be combined with a Notice of
Apparent Liability for Forfeiture. Competitive developments have not
reduced the need for this rule. Enforcement actions, and procedures to
ensure notification to violators of those actions, are imperative in a
competitive marketplace to ensure that the market is able to function
without unlawful interference. To that end, staff does not find that
rule 1.89 is "no longer necessary in the public interest as the result
of meaningful economic competition between providers of such
[telecommunications] service." No parties argued for elimination of
this rule, and we recommend that it be retained.
III. RECENT AND ONGOING ACTIVITIES
7. At any given time, the Enforcement Bureau has pending investigations
and complaint proceedings involving competition rules for
telecommunications service providers in various stages of activity.
The Bureau investigates possible violations of the Communications Act
and the Commission's rules to ensure a level playing field which in
turn promotes robust competition between providers of
telecommunications service as well as to ensure that consumers are
protected in a competitive landscape.
8. During the past two years, for example, the Bureau or the Commission
has taken enforcement action in the following areas related to
telecommunications service providers, among others: the enforcement of
Universal Service Fund (USF) and other regulatory program obligations
(including the Telecommunications Relay Service Fund and the North
American Numbering Plan Administration Fund), where the Commission, in
2006 alone, has issued notices of apparent liability for forfeiture
and entered into consent decrees totalling nearly $1.2 million dollars
and recovered nearly $1.5 million dollars in underpayments to the
Fund, as well as suspended or debarred four companies or individuals
convicted of E-Rate fraud from participating in the Universal Service
program. The Commission also took enforcement action to ensure that
payphone service providers are fairly compensated for each and every
call when, most recently in 2006, it issued a notice of apparent
liability for forfeiture in the amount of $466,000 against a carrier
for its failure to comply with the Commission's payphone compensation
rules. In this regard, the Commission also issued an Order affirming
the Bureau's decision granting a liability complaint filed by payphone
service providers and their agents for billing and collection. The
Bureau's competition enforcement also includes resolution of
significant carrier-to-carrier and marketplace issues, as well as the
enforcement of pole attachment rights, where the Bureau facilitates
the resolution of disputes between telecommunications carriers and
cable system operators, on the one hand, and utilities, on the other
hand, regarding rights afforded by section 224 of the Act. For
example, in 2006, among other matters, the Bureau resolved competitive
market disputes through pre-complaint mediations and formal complaint
proceedings against carriers, as well as initiated investigations
related to the marketing of unauthorized equipment.
IV. SUMMARY OF BIENNIAL REGULATORY REVIEW
9. The staff's review of rules 1.711, 1.720 through 1.736, 1.80 and 1.89,
as well as its review of comments submitted in connection with the
biennial review proceeding, do not support elimination or modification
of the subject rules as a result of competitive developments in the
marketplace. Specifically, staff does not find that these rules are
"no longer necessary in the public interest as the result of
meaningful economic competition between providers of such
[telecommunications] service." Independent of the requirements of
section 11, however, as stated above, staff recommends initiating a
proceeding to consider modifying section 1.80 of the Commission's
rules.
47 C.F.R. SS 1.80, 1.711, and 1.720 -1.736; see also 47 C.F.R. S 1.89
(notice of violation proceedings).
47 U.S.C. S 161.
Public Notice, The Commission Seeks Public Comment in the 2006 Biennial
Review of Telecommunications Regulations - EB Docket No. 06-153, FCC
06-115, August 10, 2006.
See AAPD Comments at 2-3.
Id. at 2.
Id. at 3.
Federal Communications Commission DA 07-667
3
Federal Communications Commission DA 07-667
10.